5.  The applicant was born in 1957 and lives in Shumen. At the relevant time he was an officer in the Bulgarian Army.
6.  On an unspecified date in 1989‑91 he was charged with stealing instruments and technical equipment belonging to individuals with whom he was acquainted. On 30 July 1991 he was indicted.
7.  On 28 October 1991 he was convicted and sentenced to two years' imprisonment, suspended.
8.  On 30 October 1991 the former Supreme Court (Върховен съд) quashed his conviction and sentence and referred the case back to the prosecuting authorities for additional investigation (реш. № 360 от 30 декември 1991 г. по н. д. № 369/1991 г., ВС, военна колегия).
9.  It seems that the case remained dormant until 2001.
10.  On 6 June 2001, following a request by the prosecuting authorities, the migration authorities decided to prohibit the applicant from leaving the territory of Bulgaria and requested that he surrender his international passport. They relied on section 75(3) of the 1998 Bulgarian Identity Papers Act (see paragraph 24 below). On 22 August 2001 the applicant surrendered his passport. He did not seek judicial review of the decision.
11.  After that the applicant was indicted and put on trial. On 20 March 2002 the Varna Military Court (Варненски военен съд) found him guilty of theft and sentenced him to two years' imprisonment, suspended for four years. It noted that the stolen items had been found in the applicant's cellar and recognised by their owners, and held that the applicant's assertion that he had bought the items was not credible. Lastly, the court found that even though the applicant had been on night duty at the time when one of the thefts had been committed, he did not have an alibi, because his barracks were close to the building where the theft had taken place, he had come to work by car, and had not been seen by his colleagues for several hours.
12.  On an appeal by the applicant, on 5 June 2002 the Military Court of Appeal (Военноапелативен съд) reversed the Varna Military Court judgment and acquitted the applicant.
13.  On an appeal by the prosecution, on 10 February 2003 the Supreme Court of Cassation (Върховен касационен съд) quashed the Military Court of Appeal judgment and remitted the case (реш. № 636 от 10 февруари 2003 г. по н. д. № 546/2002 г., ВКС, II н. о.).
14.  On 20 April 2003 the Military Court of Appeal upheld the applicant's conviction and sentence.
15.  On an appeal by the applicant, on 23 February 2004 the Supreme Court of Cassation upheld the Military Court of Appeal judgment (реш. № 42 от 23 февруари 2004 г. по н. д. № 657/2003 г., ВКС, I н. о.). It noted that all the applicant's evidentiary requests had been allowed and that the charges against him had been sufficiently established on the basis of the available evidence.
16.  On 13 October 2004 the Shumen Regional Directorate of Internal Affairs, having received the applicant's criminal record, decided to take away his international passport until he had been rehabilitated. It relied on section 76(2) of the 1998 Bulgarian Identity Papers Act (see paragraph 25 below). The applicant did not seek judicial review of the decision.
17.  Article 35 § 1 of the 1991 Constitution provides that “[e]veryone shall have the right to ... leave the country” and that this right “may be subject to restrictions provided for by act of Parliament, in the interest of national security, for the protection of public health and the rights and freedoms of others.”
18.  An amendment to the 1974 Code of Criminal Procedure that entered into force in June 2003 introduced the possibility for accused persons to request that their case be brought for trial if the investigation had not been completed within two years in cases concerning serious offences and one year in all other cases (new Article 239a). On 29 April 2006 it was superseded by similarly worded provisions, Articles 368 and 369 of the 2005 Code of Criminal Procedure, which were, however, repealed with effect from 28 May 2010. In a decision of 28 September 2010 (реш. № 10 от 28 септември 2010 г., по к. д. № 10/ 2010 г., обн., ДВ, бр. 80 от 12 октомври 2010 г.) the Constitutional Court rejected a challenge to the repealing legislation.
19.  In October 1994 a new provision, Article 147 § 3, was added to the 1974 Code. Under that Article, the imposition of preventive measures, such as detention, house arrest or bail, on individuals charged with an offence punishable by more than three years' imprisonment automatically triggered a prohibition on their leaving Bulgaria. Under Article 146 § 1 of the Code, at least one of the above preventive measures had to be imposed on any person charged with a publicly prosecutable offence.
20.  On 1 January 2000 Article 147 § 3 was repealed and replaced by the new Article 153a. It provided, in paragraph 1, that the public prosecutor could prohibit an individual accused of an offence committed with intent and punishable by imprisonment to leave Bulgaria without permission. Under Article 153a § 2, the prosecutor had to rule on a request for such permission within three days of its lodging. His or her refusal to grant permission was subject to judicial review (Article 153a § 3). The court had to examine the application in private and rule immediately by means of a final decision (Article 153a § 4). At the trial stage, the prosecutor's powers in that respect were taken over by the trial court (Article 153a § 5). The Supreme Court of Cassation has held that a trial court's decisions under Article 153a § 5 are subject to appeal to a higher court (реш. № 129 от 8 май 2003 г. по н. д. № 780/2002 г., ВКС, I н. о.).
21.  On 29 April 2006 Article 153a of the 1972 Code was superseded by Article 68 of the 2005 Code. It repeats its text almost verbatim, but also provides, in paragraph 5, that the court may, in addition to quashing the prosecutor's refusal to grant permission for travel, set aside the travel ban as a whole, provided that there is no risk of the accused fleeing abroad. Paragraph 6 specifies that the court's decisions on such matters during the trial stage are subject to appeal to a higher court.
22.  Article 6 § 2 of the Code of Administrative Procedure, which came into force on 12 July 2006, provides that an administrative decision and its enforcement must not infringe rights and legitimate interests more than the minimum necessary for achieving the aim sought to be realised. Article 6 § 5 provides that administrative authorities must refrain from acting in a way that causes damage which is out of proportion to the aim sought to be realised.
23.  Section 33(1) of the 1998 Bulgarian Identity Papers Act (Закон за българските документи за самоличност) (in October 2009 the Act's title was changed to Bulgarian Personal Papers Act – Закон за българските лични документи) (“the 1998 Act”) provides that any Bulgarian citizen has the right to leave the country and return to it with a passport or an equivalent document. Under section 33(3), that right cannot be subject to restrictions unless they are provided for by law and are necessary for the protection of national security, public order, health, or the rights and freedoms of others.
24.  Section 75(3) of the Act, as in force until October 2009, provided that individuals the prosecuting authorities had barred from travelling abroad could not leave the country and were to have their international passports taken away. The Supreme Administrative Court has consistently held that the prosecuting authorities' decision to impose a travel ban was binding on the migration authorities and that the proper way of challenging such a ban was to seek permission to travel under Article 153a § 2 of the 1974 Code of Criminal Procedure (see paragraph 20 above); the granting of such permission would constitute grounds for the migration authorities to allow the person concerned to travel (реш. № 8385 от 29 декември 2000 г. по адм. д. № 3483/2000 г., ВАС, ІІІ о.; реш. № 6134 от 25 юли 2001 г. по адм. д. № 3226/2001 г., ВАС, V о.; реш. № 805 от 30 януари 2002 г. по адм. д. № 8371/2001 г., ВАС, V о.; реш. № 4275 от 30 април 2002 г. по адм. д. № 2556/2002 г., ВАС, V о.; реш. № 10796 от 29 ноември 2002 г. по адм. д. № 4904/2002 г., ВАС, V о.; реш. № 11074 от 9 декември 2002 г. по адм. д. № 8178/2002 г., ВАС, петчленен състав; реш. № 37 от 6 януари 2003 г. по адм. д. № 9139/2002 г., ВАС, V о.; реш. № 2397 от 7 март 2006 г. по адм. д. № 9311/2005 г., ВАС, V о.; реш. № 11764 от 27 ноември 2006 г. по адм. д. № 5838/2006 г., ВАС, V о.).
25.  Section 76(2) of the Act provided that a Bulgarian national who had been convicted of a wilful publicly prosecutable offence and had not been rehabilitated (see paragraphs 30 and 31 below) could be barred from leaving the country and have his or her international passport taken away. On 1 October 2009 Parliament repealed it, on the basis of a bill introduced by the Council of Ministers on 21 August 2009. The explanatory notes to the bill made reference to Directive 2004/38/EC (see paragraph 28 below). The repealing Act came into force on 20 October 2009. In its ensuing case‑law the Supreme Administrative Court held that the repeal did not automatically invalidate travel bans imposed before it had come into force (реш. № 13819 от 17 ноември 2009 г. по адм. д. № 6999/2007 г., ВАС, ІІІ о.; реш. № 15106 от 10 декември 2009 г. по адм. д. № 7052/2009 г., ВАС, V о.; реш. № 10449 от 13 август 2010 г. по адм. д. № 1609/2010 г., ВАС, VІІ о.). The matter was settled with the adoption of paragraph 5 of the transitional and concluding provisions of an Act for the Amendment of the 1998 Act. It came into force on 10 April 2010 and specified that within three months of its entry into force all measures imposed under section 76(2) would cease to have effect.
26.  Decisions under the above provisions were subject to judicial review (section 79). In its almost constant case‑law under section 76(2) between 2000 and 2010, the Supreme Administrative Court held that the courts did not have jurisdiction to review the manner in which the authorities had exercised their discretionary power to assess the need for such measures, and could verify only whether the prerequisites under section 76(2) – conviction and lack of rehabilitation – were in place (реш. № 7074 от 22 ноември 2000 г. по адм. д. № 1067/2000 г., ВАС, ІІІ о.; реш. № 4244 от 29 юни 2000 г. по адм. д. № 2634/2000 г., ВАС, ІІІ о.; реш. № 4987 от 20 юли 2000 г. по адм. д. № 2922/2000 г., ВАС, ІІІ о.; реш. № 7727 от 17 октомври 2001 г. по адм. д. № 1760/2001 г., ВАС, V о.; реш. № 5030 от 29 юни 2001 г. по адм. д. № 3512/2001 г., ВАС, V о.; реш. № 7172 от 28 септември 2001 г. по адм. д. № 7968/2000 г., ВАС, ІІІ о.; реш. № 9375 от 7 декември 2001 г. по адм. д. № 6604/2001 г., ВАС, V о.; реш. № 9663 от 31 октомври 2002 г. по адм. д. № 4315/2002 г., ВАС, петчленен състав; реш. № 10819 от 2 декември 2002 г. по адм. д. № 6100/2002 г., ВАС V о.; реш. № 4086 от 24 април 2003 г. по адм. д. № 1587/2003 г., ВАС, петчленен състав; реш. № 8729 от 2 октомври 2003 г. по адм. д. № 4354/2003 г., ВАС, петчленен състав; реш. № 6360 от 6 юли 2004 г. по адм. д. № 10646/2003 г., ВАС, V о.; реш. № 3167 от 11 април 2005 г. по адм. д. № 8361/2004 г., ВАС, V о.; реш. № 9883 от 11 ноември 2005 г. по адм. д. № 3562/2005 г., ВАС, V о.; реш. № 1203 от 1 февруари 2006 г. по адм. д. № 7226/2005 г., ВАС, V о.; реш. № 7840 от 12 юли 2006 г. по адм. д. № 1722/2006 г., ВАС, V о.; реш. № 5721 от 6 юни 2007 г. по адм. д. № 2389/2007 г., ВАС, V о.; реш. № 11504 от 21 ноември 2007 г. по адм. д. № 8005/2007 г., ВАС, V о.; реш. № 435 от 14 януари 2008 г. по адм. д. № 9455/2007 г., ВАС, V о.; реш. № 11568 от 3 ноември 2008 г. по адм. д. № 8430/2008 г., ВАС, V о.; реш. № 7099 от 1 юни 2009 г. по адм. д. № 14157/2008 г., ВАС, V о.; реш. № 15106 от 10 декември 2009 г. по адм. д. № 7052/2009 г., ВАС, V о.; реш. № 16059 от 28 декември 2009 г. по адм. д. № 7840/2009 г., ВАС, V о.; реш. № 16147 от 29 декември 2009 г. по адм. д. № 7284/2009 г., ВАС, V о.; реш. № 5535 от 28 април 2010 г. по адм. д. № 16321/2009 г., ВАС, VІІ о.; реш. № 8688 от 25 юни 2010 г. по адм. д. № 939/2010 г., ВАС, VІІ о.). In two judgments in 2000 and 2001 the Supreme Administrative held that, while having discretion in the matter, the authorities could not just rely on the fact of the conviction, but had to in addition give specific reasons for their decision to prohibit the persons concerned from leaving the country (реш. № 4488 от 7 юли 2000 г. по адм. д. № 2613/2000 г., ВАС, ІІІ о.; реш. № 8727 от 20 ноември 2001 г. по адм. д. № 6533/2001 г., ВАС, петчленен състав). Very recently, in August 2010, in a case in which the majority of the panel examining a case maintained the view that the authorities' discretion to impose such measures was unreviewable, a judge dissented, saying that in view of the requirements of Directive 2004/38/EC (see paragraph 28 below), such measures should be subjected to a strict proportionality assessment, in line with the principles developed by the European Court of Justice. She also expressed the opinion that section 76(2) ran counter to Article 27 of that Directive (реш. № 10449 от 13 август 2010 г. по адм. д. № 1609/2010 г., ВАС, VІІ о., особено мнение на съдия С. Янкулова).
27.  In the end of 2006 Parliament added two new subsections to section 23 of the 1998 Act. They came into force on 1 January 2007, the date of accession of Bulgaria to the European Union. New subsection 2 provides that every Bulgarian citizen has the right to leave the country to travel to another Member State with an identity card. Under subsection 3, that right is not subject to restrictions other than those provided for by law in the interests of national security, public safety, public order, the protection of health, or the rights and freedoms of others. In a judgment of 9 March 2009 (реш. № 3116 от 9 март 2009 г. по адм. д. № 10475/ 2008 г., ВАС, V о.), the Supreme Administrative Court overruled a lower court, which had held that, to impose a travel ban under section 76(2) of the Act (see paragraph 25 above), the authorities had to provide a specific justification meeting the requirements of section 23(3), which reflected those of Article 27 § 1 of Directive 2004/38/EC (see paragraph 28 below). The Supreme Administrative Court held that the two prerequisites laid down in section 76(2) amounted to sufficient justification for the purposes of section 23(3).
28.  The chief instrument currently governing the free movement within the European Union of individuals who are nationals of a member State is Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Article 27 of the Directive provides, in so far as relevant:
“1.  Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. 2.  Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. ...”
29.  In a judgment of 24 March 2010 (реш. № 3909 от 24 март 2010 г. по адм. д. № 13704/2009 г., ВАС, VІІ о.) the Supreme Administrative Court held that a travel ban imposed under section 76(3) of the 1998 Act – which provided that individuals who owed judicially established debts of more than a certain amount could be barred from leaving the country – was in breach of the above provision, which, in spite of not being transposed at the time of the ban, was directly applicable in Bulgaria and had precedence over domestic‑law rules which ran against it.
30.  Under Article 86 § 1 (1) of the 1968 Criminal Code, an individual who has been given a suspended sentence and does not commit another offence during the probationary period is automatically rehabilitated. However, automatic rehabilitation is not possible if the person concerned has already been rehabilitated for an offence committed during adulthood (Article 86 § 2).
31.  Apart from automatic rehabilitation, a convicted individual can benefit from judicial rehabilitation. Such rehabilitation may be granted by the court which convicted him or her, if the sentence has been served more than three years previously and the individual concerned has not committed another offence punishable with imprisonment, has shown good behaviour and, in the case of offences committed with intent, has made good any damage done (Article 87 § 1). The latter requirement may be disregarded by the court if there is good reason (Article 87 § 2).